Noting the fact that according to press reports Ryan Giggs's lawyers are still trying to get information from Twitter can I offer to organise a collective defence of twitter users in the English and Welsh jurisdiction. Anyone who receives notification from twitter is welcome to contact me via the parliamentary systems.

Hon. Members will be aware that I have a long-time concern about secrecy in court processes, which was highlighted in the story in The Guardian today. We have no true freedom of speech when people can be jailed for complaining about their problems. This country seems to have a penchant for covering up problems that would be discussed openly in others.

Florence Bellone, a Belgian journalist, recorded an interview with Carol Hughes and Lucille O’Regan in Ireland, which was broadcast on RTBF in Belgium. A copy was placed on YouTube, but access in the UK is now blocked as a result of what YouTube calls a “government request”. What can be so frightening about that interview that people in the UK are not allowed to see it, but it can be broadcast in Belgium?

The policy of international websites varies. The Twitter account containing the names of lots of people subject to super-injunctions is still there, and will remain there for some time, yet newspapers in the UK are not allowed to refer to it by name. It is clear that in the UK people are now recognising the oppressive nature of court secrecy in this country. For instance, I wrote and released a song about this in 2008, the lyrics of which would have been in contempt of court had they not already been spoken in the House. Since then, however, things have got even worse, with the force of money being used to prevent women from complaining about their ex-boyfriends. One woman who received a super-injunction said to me:

“The process is terrifying…For the first 2 months I shook! And I shake now when talking about it to someone”.

Questions have been raised about whether I should have discussed the row between Ryan Giggs and Twitter yesterday. I am not a party to the privacy case. I have not been served with the injunction. I have not actually seen the injunction and cannot guarantee that it actually exists. I have read his name in the Sunday Herald, and on Wikipedia and Twitter. I could obviously stand on a soapbox in Scotland and say what I said in the House of Commons. I believe I could probably say it on Hyde park corner, because it is in the public domain. For me to have abused parliamentary privilege, I would have had to use it in the first instance, but I do not think that the case has been made that it would have been contempt of court outside the House.

I remain concerned, however, that the process of issuing contempt of court proceedings has been kicked off against users of Twitter. Someone should not be able to hide behind anonymity to take action against others. I am completely unsure what the legal position is in respect of naming Giles Coren. I do not think it would be contempt of court to name him outside the House, yet The Times was worried enough yesterday not to identify him—and he is one of its journalists. I will not identify the footballer whom, it is rumoured, would like to see him prosecuted for tweeting.

Adam Afriyie (Windsor) (Con): I fully approve of the hon. Gentleman’s campaign to ensure that injunctions and super-injunctions do not interfere with our constituents’ ability to contact us and speak to us about issues. However, will he explain to the House why he thinks he is judge and jury on whether certain people under court order should be named in this place? Why does he feel he has the right above anybody else? It seems very strange to use privilege in such a way.

John Hemming: I explained that those details were already in the public domain and accessible in Forbes Magazine, the Sunday Herald and many other places, so I do not think it would have been contempt of court outside the House. However, I accept the Speaker’s ruling on this issue.

I refer hon. Members to a story in The Guardian today relating to another injunction. I shall read out the first paragraph:

“A wealthy British financier is seeking to have his sister-in-law secretly jailed in a libel case, in the latest escalation of the controversy over superinjunctions and the internet, the Guardian can disclose.”

What we have here is true secret justice: somebody is being prosecuted in secret; they cannot be identified; and the person prosecuting them cannot be identified. As a rule, the Attorney-General does not prosecute civil cases, which the privacy cases are; one of the parties usually prosecutes.

John Cryer (Leyton and Wanstead) (Lab): That has nothing to do with what the hon. Gentleman did yesterday.

John Hemming: Actually, it has everything to do with what I did yesterday, because Giles Coren was subject to similar contempt proceedings. There is a great danger that a secret form of jurisprudence will develop that aims to jail people in secret and keep their identities out of the public domain for relatively trivial issues.

The law of confidentiality and privacy, as being developed by the courts, seems to be in opposition to the views of Parliament about whistleblowing. That is an important point. A number of the court orders in place act to prevent people from reporting issues, whether to the police, the General Medical Council, coastguards or whomever. The rule of law is undermined by the court orders preventing that information from being given. That is another important issue.

Mr Richard Bacon (South Norfolk) (Con): Will my hon. Friend confirm that judges have also issued court orders naming Members of Parliament as people who cannot be spoken to?

John Hemming: Indeed. The issues of freedom of speech are not just about what goes in the newspapers; they are also about who communicates with whom and how tightly controlled things are. Some of the court orders issued prevent people from complaining to friends about what has been done to them; some prevent them from complaining to Members of Parliament; and others prevent them from going to the police with information. A dangerous system is developing. It is wrong to think that there is a difference between the ZAM case reported in The Guardian today and that of Giles Coren, because he could have faced exactly the same process.

John Cryer: What about Giggs?

John Hemming: The point I was making about Giggs was that his name was in the public domain already, so it would not have been contempt of court to name him outside the House. That is quite straightforward, and it does not, therefore, involve the use of privilege.

However, there is an argument about privilege where the legal position is uncertain, as it can be at times. We do not want to be unable to debate things because working out whether we can talk about them is so complex. Privilege is important and it needs to be used responsibly—there is no question about that—but my argument is straightforward. To have abused privilege, I would have to have used the name in the first instance, yet no one has evidenced to me the basis on which it would have been contempt of court for me to say outside the House what I said yesterday in it, and if it was not contempt of court outside, it cannot be an abuse of privilege within—

Nick Boles (Grantham and Stamford) (Con): Why did you not say it outside then?

John Hemming: Because it would not have been reported.

Anyway, the accountability of judicial processes depends not only on there being a public judgment, but on people having the ability externally to challenge the evidence that the courts are using. The problem with secrecy is that this all breaks down. Indeed, the report in The Guardian today about the secret committal of the sister-in-law is an example of exactly that situation, where there is no possibility of checking externally the evidence for whether the assumptions are correct. There are great questions about the reliability of much of the expert evidence provided in the family courts. If we cannot rely on the expert evidence, we will have difficulty relying on the conclusions.

There are many, many problems, and I will obviously be submitting a detailed report to the Joint Committee on the difficulties with the various injunctions. We also have a difficult day today, so I will not use up all my time. The issue of secret jailing is one that we cannot drop. Obviously we cannot do much more about it over the recess, but we cannot allow a process to continue whereby attempts are made to commit more and more people in secret proceedings. This all arises from the objective of protecting relatively trivial secrets, but it is not even close to open justice. The balancing act has completely failed when we are trying to balance somebody’s liberty on one side against something relatively trivial on the other.

"If the third party publishes information which is already fully and clearly in the public domain by reason of the acts of others, then the third party's act of publication does not have this effect. It does not have an adverse effect on the administration of justice in the action. The court's purpose in making its interlocutory order has, by then, already been defeated by the acts of others. This is so, whether those acts occurred before or after the court made its order."

So, the question I asked in The House on Monday would not have been in contempt of court if asked outside parliament. The information was in the public domain already. Widely so. I hadn't even seen a copy of the order.

Answering questions as to why he named the twitter footballer today, but not before John Hemming said

"When he sued twitter it was clear what he was doing. He was going after the ordinary people who have been gossiping about him on twitter. To prosecute someone for contempt of court is quite a serious step. It comes with an up to two year jail sentance."

"I have spoken to people of ordinary means who have received these injunctions. I have also spoken to people who faced jailing in secret hearings and who were subject to anonymity orders themselves. This is a really oppressive system.

"So on one side you have a footballer upset that people are gossiping about him and on the other side you have ordinary people facing the threats of a two year jail sentance. I think it is wrong that he has the power to do this, but at least if he is going to do this let him be held to account."

"Before he sued twitter there was no public interest in naming him. However, when his lawyers decided to go on a "search and destroy" against the ordinary people who gossip on twitter he had taken a step that should not be done anonymously."

"In Thailand they jail people for criticising the King and people here are up in arms. Here they threaten to jail people for criticising a footballer and the lawyers say I should not name the footballer."

The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a)the extent to which—

(i)the material has, or is about to, become available to the public; or

(ii)it is, or would be, in the public interest for the material to be published;

Much that the presence of the twitter account that purports to reveal contents of a number of super injunctions was in the news on Monday, the account is still there and now has 113,865 followers.

What we have is a law that is not generally accepted as well as a law that only really benefits wealthy men.

The point about the checks and balances in the system is to ensure that the laws do have general acceptance through the parliamentary systems.

One of the challenges, however, is that when courts sit in secret and make orders that themselves are secret it is difficult to get clarity as to whether the laws do or do not have general acceptance.

Obviously when it comes to the question of privacy it has become quite clear that the current position does not have general acceptance.

My own view is that some of the other things that have been kept secret by court orders are issues that would not have general acceptance. However, that can only be tested by getting those issues into the public domain.

John Hemming (Birmingham, Yardley): To ask the Secretary of State for Culture, Olympics, Media and Sport, if he will instruct legal representatives to intervene on one or more cases in respect of recent judgments in terms of the balance between Articles 8 and 10 of the European Convention of Human Rights to take the case to the Supreme Court for a ruling on the interpretation of section 12 of the Human Rights Act 1998.(55629)

The link is to the judgment. The conclusion of the judgment is:However, the Court has consistently emphasised the need to look beyond the facts of the present case and to consider the broader impact of a pre-notification requirement. The limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind. Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 does not require a legally binding pre-notification requirement. Accordingly, the Court concludes that there has been no violation of Article 8 of the Convention by the absence of such a requirement in domestic law.

It is just not practicable to have a legal requirement to notify people every time you are going to talk about facts relating to them giving sufficient time for them to get an injunction.

There has been a lot of criticism of the European Court of Human Rights, but on this decision I think they got it right.

The proposal in the editors code that people are normally notified for comment is a good one, but the extra step of always requiring notification is a step too far - as the court have agreed.

Published, promoted, and printed (well not really printed I suppose, more like typed) by John Hemming, 1772 Coventry Road, Birmingham B26 1PB. Hosted by blogspot.com part of Google.com 1600 Amphitheatre Parkway
Mountain View, CA 94043, United States of America.
This blog is posted by John Hemming in his personal capacity as an individual.

If you want me to respond to any comment please either comment only on the past few entries or put something in your comment to make it clear what you are commenting on (the URL would help). Otherwise I will not be able to find the comment quickly and will not respond.